P.
v. De Derryberry

















Filed
12/27/12 P. v. De Derryberry CA3









NOT TO BE PUBLISHED







California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD
APPELLATE DISTRICT

(Yuba)

----






>

THE PEOPLE, Plaintiff and Respondent, v. DANNY DE DERRYBERRY, Defendant and Appellant.

C070972 (Super. Ct. No. CRF11486)

Appointed
counsel for defendant Danny De Derryberry asked this court to review the record
to determine whether there are any arguable
issues on appeal. (>People v. Wende (1979) 25 Cal.3d
436 (Wende).) Finding no arguable error that would result
in a disposition more favorable to defendant, we will affirm the judgment.

I

Because the matter was resolved by
plea, the facts are taken from the probation officer’s report. Following a 20-year marriage, defendant
separated from his wife. The wife
obtained a criminal protective no-contact order against defendant.

During the next two months, defendant
nonetheless contacted his wife on many occasions. On one occasion she reported the violation to
the sheriff’s department.

When the wife subsequently arrived
at a restaurant for lunch, an unfamiliar car parked behind her truck. Defendant got out of the car and approached
her. She reminded him of the href="http://www.fearnotlaw.com/">protective
order and said she did not
want to talk to him. Defendant gave his
wife some clothes for their son. She
told defendant to leave her alone and she drove away. When the wife stopped at a turnout, defendant
parked in front of her truck and approached her on foot. He opened her car door, got down on one knee,
told her he loved her, and begged her to take him back. She smelled alcohol on his breath. She told him their relationship was over and
she had filed for divorce. He cried and
pleaded with her, and she reminded him of the protective order.

Defendant told his wife he wanted to
hug and hold her. When she refused, his
demeanor immediately changed from apologetic to very angry. He reached into the truck, grabbed her by her
arms, struggled to get on top of her, and said, “you know you want this, let’s
fuck just one last time.” The wife
fought back. Defendant grabbed her pants
and pulled her left pant leg all the way off.
He pulled down his swimming trunks, exposing his penis.

Defendant groped his wife’s legs,
inner thighs and buttocks. The wife
clung to the steering wheel and pleaded for him to stop. Defendant repeatedly forced his fingers into
her vagina and rectum.

When he stopped the attack,
defendant took his wife’s camera and cellular telephone from the center
console, physically got off of her and left the truck. The wife drove to her place of employment and
telephoned the sheriff’s department.
Later, she was taken to a hospital for a sexual assault examination that
revealed bruising, tearing of the rectum, and trauma to the vagina.

Defendant reported the incident to
the sheriff’s department, claiming he had been the victim of a href="http://www.mcmillanlaw.com/">domestic
violence incident. He claimed his wife hit him with a tire
iron.

Defendant subsequently pleaded no
contest to stalking ( ADDIN BA xc
<@st> xl 29 s ZDQAYZ000001 xpl 1 l "Pen. Code, § 646.9, subd.
(b)" Pen. Code,
§ 646.9, subd. (b) -- count 4),href="#_ftn1"
name="_ftnref1" title="">[1] infliction of
corporal injury on a spouse ( ADDIN BA xc
<@osdv> xl 18 s ZDQAYZ000006 xpl 1 l "§ 273.5, subd.
(a)" § 273.5, subd.
(a) -- count 5), and second degree robbery ( ADDIN BA xc <@osdv>
xl 24 s ZDQAYZ000007 xpl 1 l "§§ 211, 212.5, subd. (c)" §§ 211, 212.5,
subd. (c) -- count 6), in exchange for the dismissal with a ADDIN BA xc <@$cs> xl 6 s
ZDQAYZ000002 Harvey waiverhref="#_ftn2" name="_ftnref2" title="">[2] of six related counts
and a probation violation in an unrelated case.


The trial court sentenced defendant
to five years in state prison,
awarded him 169 days of custody credit and 25 days of conduct credit, ordered
him to pay victim restitution in the amount of $150 plus collection fees and
interest, and ordered him to pay a $1,680 restitution fine ( ADDIN BA xc
<@osdv> xl 8 s ZDQAYZ000008 xpl 1 l "§ 1202.4" § 1202.4), a
$1,680 parole revocation fine suspended unless parole is revoked ( ADDIN BA xc
<@osdv> xl 9 s ZDQAYZ000009 xpl 1 l "§ 1202.45" § 1202.45), a $40
theft crime fine ( ADDIN BA xc
<@osdv> xl 8 s ZDQAYZ000010 xpl 1 l "§ 1202.5" § 1202.5), a $120
court operations fee ( ADDIN BA xc
<@osdv> xl 22 s ZDQAYZ000011 xpl 1 l "§ 1465.8, subd.
(a)(1)" § 1465.8, subd.
(a)(1)), and a $90 court facilities assessment ( ADDIN BA xc
<@st> xl 18 s ZDQAYZ000003 xpl 1 l "Gov. Code, § 70373" Gov. Code,
§ 70373).

II

Appointed counsel filed an href="http://www.mcmillanlaw.com/">opening
brief setting forth the
facts of the case and asking this court to review the record and determine
whether there are any arguable issues on appeal. (Wende,
supra, 25 Cal.3d 436.)
Defendant was advised by counsel of the right to file a supplemental brief
within 30 days of the date of filing the opening brief. More than 30 days elapsed and we received no
communication from defendant.

>



Having undertaken an examination of
the entire record, we find no arguable error that would result in a disposition
more favorable to defendant.

DISPOSITION

> The judgment is
affirmed.





MAURO , J.





We
concur:





BLEASE ,
Acting P. J.





HULL ,
J.